People v. Dill CA4/1 ( 2020 )

Filed 11/3/20 P. v. Dill CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077315
Plaintiff and Respondent,
v. (Super. Ct. No. SCE393903)
DAVION MYZELL DILL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Patricia K. Cookson, Judge. Affirmed.
Bruce L. Kotler, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Davion Myzell Dill of one count of possession of a
firearm by a felon (Pen. Code,1 § 29800, subd. (a)(1)). Dill admitted a strike
prior (§ 667, subds. (b)-(i)). Dill was sentenced to term of four years in
custody.
1 All further statutory references are to the Penal Code.
Dill filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating he has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Dill the opportunity to
file his own brief on appeal, but he has not responded.
STATEMENT OF FACTS
We take the following accurate summary of the facts from the opening
brief for convenience to provide background for this appeal.
A. Prosecution case.
1. Law Enforcement and Civilian Witness Testimony.
On August 22, 2019, at approximately 1:30 a.m., San Diego County
Sheriff’s Deputies Jonathon Young and Shain Stoner, who were in separate
vehicles, initiated a traffic stop of a red Mitsubishi because it did not have a
front license plate, near the intersection of North Magnolia and Bradley in
the Lakeside area. Young positioned his patrol vehicle behind the Mitsubishi
and activated his overhead lights, but the car failed to yield as they traveled
west bound on Bradley, requiring him to activate his siren. The Mitsubishi
entered the 67 southbound from Bradley, where it continued to fail to yield.
As they approached the I-8 freeway the Mitsubishi took the I-8 exit getting
off at Magnolia. The Mitsubishi pulled over and slowed along the curb-line of
North Magnolia and the passenger door started to open. The Mitsubishi
stopped and Dill, who wore a red sweatshirt, got out. The Mitsubishi then
took off and was pursued by Stoner.
According to Young, after getting out of the car, Dill jumped a guardrail
and reached into his jacket throwing a red object into the brush area along
the curb-line, as he ran up an embankment. Young had stopped his patrol
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vehicle and got out simultaneous with Dill. Young’s body-cam video was on,
but it did not show Dill throwing anything. Dill fled on foot with Young in
pursuit, following Dill’s path through a brushy area, across the on-ramp to I-
8 westbound to Magnolia, jumping a fence and running along a culvert that
went underneath I-8. They ended up on the other side of the freeway near an
apartment complex, at 360 Compton Street, where Dill scaled a steep wall
and continued towards the apartment complex; however, Young was not able
to make it over the wall to follow him.
Young went back to his vehicle to assist Deputy Stoner, who was in
pursuit of the Mitsubishi. On his way to his vehicle Young searched with a
flashlight for the object ditched earlier by Dill, finding nothing. Once he got
back into his vehicle he drove to I-8 to intercept Stoner’s pursuit of the
Mitsubishi. But, he never assisted Stoner in the pursuit because it was
terminated due to safety issues.
Timothy Noyes, meanwhile, lived in an apartment at 387 Compton
Street. In the still early morning hours, at around 1:30 a.m., Noyes awoke to
the sound of the fan on top of his dresser being knocked over. He go up out of
bed and saw a “suspect”2 on top of the dresser, who said, “They’re after me.”
Noyes responded, “You’ve got to go,” and escorted him out the front door. He
wanted to stay on the porch, however Noyes told him no, and he left going
between buildings. Noyes went back inside to use the bathroom and came
back out to talk to police officers, pointing out the direction the man went.
He and a neighbor opened the laundry room for the officers to search. Noyes
explained how his bedroom window and blinds were open and the screen was
pulled away prior to the fan being knocked over. He authenticated a
photograph of his daughter’s bedroom window with a handprint on it. Noyes
2 Noyes did not identify Dill as the suspect inside his home.
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did not give the man permission to climb through his window. Deputy David
Lannon responded to take a report of a home being broken into. Noyes
explained to him how an individual had come in through the window.
Lannon took a series of eight photographs at Noyes’s residence documenting
the entry, which he described. The photographs were of Noyes’s bedroom
window, his daughter’s bedroom window with the palm print, and the front of
the residence.
At around 1:40 a.m., El Cajon police officer Evan Gardner became
involved in the search for the man who ran from the Mitsubishi, at the same
time, he was also aware of the home entry. He was working with officer Dan
Thompson who had a “hunch” to check the roof of the apartment building in
the vicinity of Compton Street and West Madison Avenue. Gardner and
Thompson went up and spotted Dill lying on the roof. Anticipating that he
might jump, Gardner went back down, and observed Dill jump down. Once
Dill had jumped, Gardner ordered him at gunpoint to put his hands up and to
get on the ground. Dill was arrested sometime after 1:43 a.m. He was not
arrested under the name Davion Dill, as during the arrest he gave the name
of Tyeron Carter with a date of birth of January 28, 1999, which matched an
actual person.
Young and Stoner met back up at the scene where Dill was taken into
custody, the apartments at 387 Compton Street, which was less than 300
yards from the wall that Young could not scale. Young stated3 that Dill “had
forced his way into a residence near the Compton Street—so there was a
question as to do we have a burglary . . . . It was at the apartment building
that Young first told Stoner that the person who ran from the car had
3 Although Young concluded it was Dill who went inside Noyes’s home,
again, Noyes did not identify Dill as the intruder.
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dropped something. Young had not communicated to dispatch that he saw an
object being tossed when it happened. The deputies went back to the area of
the embankment where Dill had left the car. There wasn’t a lot of area to be
searched, as the embankment was small. It consisted of the brush area just
after the guardrail. There, they found a loaded .22-caliber revolver with red
duct tape around the handle, no more than five feet from the roadway. It was
not until after the gun was found that Young mentioned over the radios or
dispatch that an object had been thrown.
2. Stipulations One and Two
“No. 1 stipulation: It’s stipulated that the defendant, David Dill, has
previously been convicted of a felony; [¶] No. 2: It is stipulated that
Anthony Dennison was the registered owner of a red 2002 Mitsubishi Eclipse,
license plate number 7POJ537.”
DISCUSSION
As we have noted, appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified the following possible issue that was considered in evaluating
the potential merits of this appeal: Was denial of Dill’s motion to exclude
evidence of his entry into Noyes’s house and the statements made therein
reversible error.
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Dill on this appeal.
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DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
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